11.4 Imposing Sanctions

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

11.4 IMPOSING SANCTIONS

11.401 In General. "The first time that a judge operating under the new rules imposes sanctions, . . . a message will spread quickly around the legal community. One case could handle the educative process."⁸⁹

A firm rebuke from the bench may, in certain circumstances, be all the "sanction" necessary to curb errant behavior. Beyond that, the decision to impose sanctions under the Rules remains exclusively within the judge's discretion.⁹⁰ Rule 4:12 gives a circuit court "broad discretion in determining what sanctions, if any, will be imposed" for failure to comply with the discovery rules or the court's orders.⁹¹ Similarly, the court can sanction an attorney for improperly filing court pleadings.⁹²

The scope of sanctions available to the court is broad and includes entering an order declaring as "established" the matters regarding which the order compelling discovery was made; entering an order refusing to allow the noncompliant party to support or oppose designated claims or defenses; prohibiting the introduction of designated matters into evidence; excluding witnesses; striking pleadings or parts thereof; staying proceedings until the order is obeyed; dismissing the action or any part thereof; rendering judgment by default against the noncompliant party; or treating the failure to obey an order as a contempt of court.⁹³

11.402 Violation of Court Order Required for Some Sanctions. In the past, it was understood that, under Rule 4:12(d), if a party failed to appear or respond as required, the court could, upon motion, impose sanctions even though no order compelling the actions had been entered and violated.⁹⁴ However, in Brown v. Black,⁹⁵ the Virginia Supreme Court considered a case in which the plaintiffs' claims were stricken and their complaints dismissed for failure to respond to properly-issued discovery requests. After the plaintiffs failed to respond in any way to discovery requests issued by the defendants more than eleven months previously, the defendants filed motions to compel answers to interrogatories, depositions of the plaintiffs, and independent medical examinations. in the alternative, they sought dismissal with prejudice of the plaintiffs' motion for judgment. After the plaintiffs failed to respond to these motions or appear at the hearing scheduled to address them, the court found the plaintiffs wholly derelict in prosecuting their case and, pursuant to Rule 4:12, dismissed both of the plaintiffs' motions for judgment.⁹⁶

The Virginia Supreme Court, however, ruled for the plaintiffs since there had been no order compelling discovery—holding that the remedies under Rule 4:12(d) are only those described in Rule 4:12(b)(2)(A)-(C) and that Rule 4:12(b)(2) requires that there be a violation of a court order before sanctions can be imposed.⁹⁷ The novelty of this interpretation of Rule 4:12(d) was criticized by a three-justice concurrence. In the view of the concurring justices, the majority's interpretation of the provisions of subsection (d) renders them "meaningless."⁹⁸ While the concurring justices agreed that the sanction issued by the trial court should have been reversed, they did so because the trial court abused its discretion by issuing an overly severe sanction, not because Rule 4:12(d) was limited to violations of discovery orders.

In 2018, the Virginia Supreme Court amended Rule 4:12(d) to allow a court to "impose any of the sanctions" in Rule 4:12(b)(2)(A)-(C) "without prior entry of a Rule 4:12(b) order to compel regarding this failure."⁹⁹ This amendment restored the previously "broad discretion" that characterized one of the most effective tools to regulate the discovery process and prevent abuses by the litigants¹⁰⁰ and is consistent with the federal courts' uniform view of Rule 37(d) of the Federal Rules of Civil procedure, the federal analog to Rule 4:12(d).¹⁰¹ other state courts agree that sanctions may be imposed without an order to compel,¹⁰² as do the leading practice and procedure commentators.¹⁰³ The 2018 amendment to Rule 4:12(d) also adds the requirement that a motion for sanctions under subsection (d) "be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action."

11.403 Specific Sanctions.

A. In General. When the court is supervising a case on its own docket, its options for sanctions are extensive. most commonly the sanction involves transferring the cost borne by the innocent party to the party responsible for the discovery violations. Rule 4:12 also "allows a trial court to select from a range of orders illustrated in this Rule."¹⁰⁴

B. Facts Taken as Established. After reviewing a party's response to requests for admission, for example, the requesting party can move the court to determine the sufficiency of the answer or objection.¹⁰⁵ if the court determines that the answer does not comply with the requirements of the Rule, it may order that the matter be deemed admitted or that an amended answer be served.¹⁰⁶ In lieu of these orders, the court may determine that final disposition of the request is to be made at a pretrial conference or at a designated time before trial.¹⁰⁷ While matters may be "deemed admitted by [Rule 4:11] and the passage of time,"¹⁰⁸ the trial court has discretion to decide whether to permit a party to withdraw or to amend those default admissions,¹⁰⁹ especially when doing so creates no "prejudice."¹¹⁰

As a practical matter, when a court reviews a party's responses to requests for admission after a motion has been made to determine the sufficiency of the answer or objection, it frequently finds that one of two things has occurred: (i) the party has failed to make reasonable inquiry as required by Rule 4:11,¹¹¹ or (ii) the party has unjustifiably failed to admit the truth of the requested admission. When a party fails to make a reasonable inquiry, a court may rule that the request is admitted.¹¹² To deny a request for admission on the basis of lack of knowledge, a party must state that "he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny" the request.¹¹³ if the responding party does not make that inquiry or fails to make that assertion, the responding party may be sanctioned.¹¹⁴ Further, if the responding party refuses to admit the genuineness of a document or the truth of a matter as requested and if the other party proves it at trial, the court may also invoke sanctions against the noncompliant party.¹¹⁵

C. Refusing to Allow Support, Defenses, or Evidence.¹¹⁶ If an unanswered or insufficiently answered interrogatory pertains to expert witness disclosures, the propounding party can also seek to exclude undisclosed opinions.¹¹⁷ The propounding party may object contemporaneously at trial to the admissibility of undisclosed expert opinions and is under no obligation to seek such exclusion in a pretrial motion.¹¹⁸ The court may also grant partial summary judgment,¹¹⁹ exclude specific items of evidence,¹²⁰ or bar a party from making certain legal arguments.¹²¹ For example, when a defendant "repeatedly refused to respond fully to discovery and comply with the trial court's orders," precluding them from opposing claims alleged in the complaint or introducing its own evidence to support their alleged defenses is appropriate, but prohibiting cross-examination altogether is "too harsh."¹²²

The Virginia Court of Appeals has emphasized the importance of "following correct procedure" before imposing this sanction.¹²³ The procedures differ, the court noted, for deeming requests for admission admitted and for excluding testimony.¹²⁴ Still, when properly applied, this is a defensible sanction for failing to comply with scheduling order deadlines.¹²⁵

D. Striking, Staying, Dismissing, or Defaulting. The most drastic sanctions available to a trial court against a noncompliant party are striking a pleading or defense, staying the proceedings, dismissing the action, and entering default judgment. in some cases, "it is doubtful that any lesser sanction [can] remed[y] the problem posed by" parties who violate court orders and refuse to participate in the discovery process.¹²⁶ For example, in American Safety Casualty Insurance v. C.G. Mitchell Construction, Inc., the Virginia Supreme Court affirmed the decision to grant a default judgment in excess of $250,000 because the defendant "did nothing . . . to comply with the circuit court order directing a corporate designee to appear at a Rule 4:5(b)(6) deposition."¹²⁷ When a case warrants it, a trial court may impose this "most drastic sanction of striking a party's case or 'rendering a judgment by default against the disobedient party.'"¹²⁸

E. Contempt of Court. Much like supervising the taking of live testimony, one of the trial court's tools for managing depositions is the contempt power. indeed, when the case is not pending on its own docket, it may be the court's only tool: "if a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county or city in which the deposition is being taken, the failure may be considered a contempt of that court."¹²⁹

Further, non-parties who fail to respond adequately to subpoenas issued under Rule 4:9A(g) are subject to penalties imposed by Virginia's contempt statute, section 18.2-456 of the Virginia Code.¹³⁰ Non-parties are subject only to the contempt powers of the court and not to further sanctions permissible under Rule 4:12(a)(4).¹³¹

"Because the 'judicial contempt power is a potent weapon,' our centuries-old jurisprudence has long provided that 'contempt lies for disobedience of what is decreed, not for what may be decreed.'"¹³² Thus, a trial court's "order must be in definite terms" that are "expressed rather than implied" if it is to serve as the basis for contempt.¹³³ Notably, contempt is...